Calif. Panel Orders Redo In Ex-Sales Director’s Slander Trial
Law360 (July 10, 2019, 8:15 PM EDT) — A California appeals court has reversed a $474,004 win for the former sales and marketing director of an aerospace parts company, holding that his slander allegations shouldn’t have gone before a jury while also giving him the chance to try the claim under a different theory.
The three-judge panel on Monday agreed with Sonic Industries Inc.’s contention that it should have been awarded a nonsuit on James Hawryla Mecredy’s claim for “slander per se” in his suit alleging the company made statements to American Drilling Inc., his new employer, that cost him his job.
The statement the jury ultimately based its slander findings on — that American Drilling’s decision to hire Mecredy made Sonic “uncomfortable” and could decrease the companies’ business with each other — didn’t constitute slander per se because it alone didn’t declare or imply something about Mecredy that could be proven false, the panel held.
“It is impossible to divine a specific fact about Mecredy from the statement without context,” Judge Carl H. Moor wrote in the panel’s opinion. “Because the statement does not clearly convey a meaning that is injurious to Mecredy in respect to his office, profession, trade or business, it is not slander per se.”
However, the panel was also swayed by Mecredy’s assertion that the lower court erred by not instructing the jury on his allegations of “slander pro quod,” remanding the case for a new trial with instructions on that theory of liability. Mecredy had adequately pled the claim, and there was substantial evidence that could support a finding in his favor on that theory, the panel said.
According to the panel, slander per se and slander pro quod both require three conditions — “the defendant made a statement to a person other than the plaintiff,” “the person reasonably understood that the statement was about the plaintiff” and “the defendant failed to use reasonable care to determine the truth or falsity of the statement.”
But while a slander per se claim doesn’t require plaintiffs to show that the statement made them suffer actual damages, to make a case for slander pro quod, plaintiffs have to demonstrate, among other things, that the statement caused them harm, the panel said.
The panel found that Mecredy satisfied that pleading burden when he claimed that the company made statements to the vice president of his new employer that resulted in his termination. Even though Mecredy used the phrase “per se” in his second amended complaint, the substance of the pleadings also alleged a pro quod claim, the panel said.
Mecredy’s wins on his claims for negligent and intentional interference with his prospective economic advantage also had to be reversed since they hinged on his slander claim, the panel found. But the panel said that he could raise them again in the new trial.
“Given the evidence both in support of and against a finding favorable to Mecredy on a factual finding that could have supported the jury’s special verdict in his favor on three causes of action, we conclude that the error was prejudicial and that the correct remedy is to remand for retrial on the defamation per quod theory of liability,” Judge Moor wrote.
Ryan D. Saba, an attorney for Sonic, told Law360 that they were happy with the ruling.
“Sonic is very pleased with the decision by the Court of Appeals to reverse the jury verdict and judgment and we look forward to the second trial,” Saba said.
Counsel for Mecredy didn’t respond Wednesday to a request for comment.
Judges Carl H. Moor, Lamar W. Baker and Dorothy C. Kim sat on the panel for the Second Appellate District.
Mecredy is represented by Steven Mark Rubin of the Rubin Law Corp. and James H. Cordes.
Sonic is represented by Ryan D. Saba and Elizabeth Leigh Bradley of Rosen Saba LLP.
The case is Mecredy v. Sonic Industries Inc., case number B286439, in the California Court of Appeals for the Second Appellate District.
–Editing by Jay Jackson Jr.
